Burbank city attorneys filed a petition with the U.S. Supreme Court this week arguing that a Burbank police detective who reported officer misconduct is not protected by the First Amendment and therefore cannot sue the city for retaliation because as a police officer it was his professional duty to report crimes he witnessed.
The petition, authorized by the Burbank City Council last month, asks the Supreme Court to review a U.S. 9th Circuit Court of Appeals decision that the former detective, Angelo Dahlia, was protected under the First Amendment when he reported the misconduct.
Dahlia was placed on administrative leave on May 15, 2009, four days after he reported to investigators with the Los Angeles County Sheriff’s Department that he saw officers beat, choke and threaten a robbery suspect thought to be involved in the 2007 takeover robbery of Porto’s Bakery in Burbank.
He sued the city in federal court that November, while he was still on paid leave, alleging that he was retaliated against for speech that was protected.
The city argued that under California law, as a police officer, Dahlia was required to report any criminal misconduct he witnessed.
“Any other rule would mean that police officers could pick and choose what crimes they reported — an intolerable result for effective and honest law enforcement,” the city argued in the petition, which was released by city officials Wednesday.
Additionally, the city argued that placing an employee on paid administrative leave is not an adverse employment action, and, therefore, Dahlia could not allege retaliation.
“It is vital for police departments to investigate charges of egregious misconduct by police officers and equally vital to guard against deprivation of an individual officer’s employment income until such investigation is completed,” city attorneys argued in the petition.
Dahlia’s attorney has 30 days to file a response to the petition, which was filed Tuesday, said City Atty. Amy Albano. As of Thursday, Dahlia’s attorney, Michael Morguess, had not yet decided whether he would do so.
“I’ve taken a look at the petition — it does not raise any new arguments, nor arguments that were not fully addressed by the en banc panel of the 9th Circuit,” Morguess said.
Dahlia is also suing the city for six state causes of action. That lawsuit has been put on hold pending the completion of his administrative appeal.